The Fencing Act 1978 has been in place for decades but there is still confusion as to the process and means of resolving disputes that arise under the Act. This article raises some points to be aware of before arranging a replacement boundary fence in the hope that your neighbour will pay their fair share.
Dealing with your neighbour over a boundary fence only seems to take one of two forms – quick, friendly and painless or frustrating and infuriating. It is beneficial to know what your rights and obligations are regarding neighbourly disputes over boundary fences before approaching them. The rules regarding fencing disputes are set out in the Fencing Act 1978.
Generally, costs for boundary fences must be evenly shared between the neighbours that share the boundary. The Act sets out minimum standards of fence construction and neighbours can be compelled to share the costs of a new fence. In some situations, including new subdivisions, there can be fencing covenants or other agreements to the contrary which will overrule the Act so it is best to check those first.
Costs are more difficult to determine for an existing fence. If an existing fence is “inadequate” then the neighbours should share the cost of repairing or replacing the fence. If you do not agree whether the fence is adequate then the District Court or the Disputes Tribunal will need to determine that for you. Whether you proceed to the Disputes Tribunal will depend upon whether the $30,000 limit will be exceeded.
A proper process must be followed to require payment. That process does not apply where the fence is damaged by you or your neighbour. If your teenager backs your car into the fence then you should not expect your neighbour to pay for half of the repairs.
The first step to any fencing matter is to try to get to an agreement with your neighbour about any work required. The approximate costs and specifications of any work should be put on paper. Given how common email is these days a friendly email back and forth can double as providing a record of what was agreed. If you cannot get to an agreement then you will need to take the formal route of serving a “fencing notice.”
A fencing notice must be served on your neighbour, generally, before work starts. The notice must outline the specifications of the fence, the price estimate and that you want them to contribute to half of the cost of the fence. There are some formal requirements that we can assist with to ensure it is clear enough that anybody looking at it will understand exactly what work is required. The notice gives your neighbour at least 21 days to object. If your neighbour does not respond to your notice within 21 days then they cannot object later. If they do object then they need to reply in the form of a cross notice setting out their reasons or a counter proposal. A reason could perhaps be that the neighbour considers the existing fence is adequate or that your proposal is far too expensive.
What is considered ‘adequate’
The Act defines an adequate fence as “a fence that, as to its nature, condition, and state of repair, is reasonably satisfactory for the purpose that it serves or is intended to serve.” Schedule 2 to the Act provides a number of “specimen types” of fences. These are examples for the urban and rural setting of what an adequate fence may be. Each will depend on the circumstances and the District Court or Disputes Tribunal is likely look at the surrounding area before deciding. If you have concerns about what type of fence to suggest then please contact us.
Procedures and Claims
If matters continue to deteriorate and an agreement cannot be reached then an application may be filed in the District Court or the Disputes Tribunal for an order that your neighbour pay their share. It is mandatory to follow the correct procedures under the Act before any non-urgent work on a fence begins. The consequences of not doing so may be that you cannot require your neighbour to pay their half share. There are a few traps to avoid regarding serving notices so the Act will need to be followed exactly to ensure the notice is correct in form, content and delivery. Please contact us if you need any assistance with these aspects.
Situations where a dispute arises over where a boundary lies or whether a fence is built in the correct place are more complex. Further advice should be sought if that is the case.
Published: 20 September 2019